Carr v. Berryhill
Filing
19
REPORT AND RECOMMENDATIONS re 12 Plaintiff's MOTION for Summary Judgment filed by Travis X. Carr, 16 Defendant's MOTION for Summary Judgment filed by Nancy A. Berryhill Signed by: Judge Magistrate Judge Thomas M. DiGirolamo. Signed by Magistrate Judge Thomas M. DiGirolamo on 6/7/2019. (heps, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
TRAVIS X. C.,
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Plaintiff,
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v.
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NANCY A. BERRYHILL,
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Acting Commissioner of Social Security,
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Defendant.
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Civil No. GJH 18-1210
REPORT AND RECOMMENDATION
Plaintiff Travis C. seeks judicial review under 42 U.S.C. § 405(g) of a final decision of
the Commissioner of Social Security (“Defendant” or the “Commissioner”) denying his
application for disability insurance benefits (“DIB”) under Title II of the Social Security Act.
Before the Court are Plaintiff’s Motion for Summary Judgment (ECF No. 12), Defendant’s
Motion for Summary Judgment (ECF No. 16), and Plaintiff’s “Reply Brief” (ECF No. 18).2
Under Standing Order 2014-01, this matter has been referred to the undersigned for pretrial
management and for proposed findings of fact and recommendations under 28 U.S.C.
§ 636(b)(1)(B) and L.R. 301(5)(b)(ix). No hearing is necessary. L.R. 105(6). For the reasons
1
On April 17, 2018, Nancy A. Berryhill became the Acting Commissioner of Social Security.
See 5 U.S.C. § 3346(a)(2); Patterson v. Berryhill, No. 2:18-cv-00193-DWA, slip op. at 2 (W.D.
Pa. June 14, 2018).
The Fourth Circuit has noted that, “in social security cases, we often use summary judgment as
a procedural means to place the district court in position to fulfill its appellate function, not as a
device to avoid nontriable issues under usual Federal Rule of Civil Procedure 56 standards.”
Walls v. Barnhart, 296 F.3d 287, 289 n.2 (4th Cir. 2002). For example, “the denial of summary
judgment accompanied by a remand to the Commissioner results in a judgment under sentence
four of 42 U.S.C. § 405(g), which is immediately appealable.” Id.
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that follow, it is RECOMMENDED that Defendant’s Motion for Summary Judgment (ECF No.
16) be DENIED, Plaintiff’s Motion for Summary Judgment (ECF No. 12) be GRANTED, and
that the matter be REMANDED for an award of benefits.
I
Background
Born in 1957, Plaintiff has a high-school education and previously worked as a limousine
driver, paralegal, real estate leasing agent, collector, and collections manager. R. at 163, 3950.
Plaintiff filed applications for DIB and for Supplemental Security Income (“SSI”) on June 30,
2010, alleging disability beginning on September 15, 2008, due to stroke, hypertension, and
depression. R. at 9, 162. State agency consultants granted Plaintiff’s SSI application as of June
30, 2010. R. at 9, 70, 3936. The Commissioner denied, however, Plaintiff’s application for DIB
initially and again on reconsideration, so Plaintiff requested a hearing before an Administrative
Law Judge (“ALJ”). R. at 61-82.
ALJ María Alexander Nuñez held a hearing on January 18, 2013, and issued an
unfavorable decision on March 18, 2013. R. at 6-60. On May 22, 2013, the Appeals Council
denied Plaintiff’s request for review. R. at 1-5. Plaintiff sought judicial review in this Court,
which, upon the Commissioner’s consent, remanded the case on January 15, 2014. R. at 410203. The Appeals Council vacated the ALJ’s decision and remanded the case to an ALJ on
February 24, 2014. R. at 4104-08.
On July 15, 2014, ALJ Theodore P. Kennedy held a hearing at which Plaintiff, a medical
expert, and a vocational expert (“VE”) testified. R. at 3960-4007. On August 1, 2014, ALJ
Kennedy issued a decision finding Plaintiff not disabled from the alleged onset date of disability
of September 15, 2008, through the date last insured of March 31, 2009. R. at 3933-59. On
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August 26, 2014, Plaintiff filed exceptions to the decision with the Appeals Council, which
declined to assume jurisdiction on February 18, 2015. R. at 3915-18, 3928-32. The ALJ’s
decision thus became the final decision of the Commissioner after remand. See 20 C.F.R.
§ 404.984(b)(2).
On March 12, 2015, Plaintiff sought review of the Commissioner’s decision by filing a
complaint in this Court, which remanded the case on September 7, 2016. R. at 4404-26. The
Appeals Council vacated the ALJ’s decision and remanded the case to an ALJ on September 16,
2016. R. at 4427-32.
On April 18, 2017, ALJ Melvin G. Olmscheid held a hearing where Plaintiff, a
psychological expert, and another VE testified. R. at 4251-317. On June 15, 2017, the ALJ
found that Plaintiff (1) had not engaged in substantial gainful activity from his alleged onset date
of disability of September 15, 2008, through his date last insured of March 31, 2009; and (2) had
an impairment or a combination of impairments considered to be “severe” on the basis of the
requirements in the Code of Federal Regulations; but (3) did not have an impairment or a
combination of impairments meeting or equaling one of the impairments set forth in 20 C.F.R.
pt. 404, subpt. P, app. 1; and (4) was unable to perform his past relevant work; but (5) could
perform other work in the national economy. R. at 4226-42. The ALJ thus found that he was not
disabled from September 15, 2008, through March 31, 2009. R. at 4242.
In so finding, the ALJ found that, through the date last insured, Plaintiff had moderate
limitations in his ability to concentrate, persist, or maintain pace. R. at 4231. The ALJ then
found that, through the date last insured, Plaintiff had the residual functional capacity (“RFC”)
to perform light work as defined in 20 CFR 404.1567(b) except he can perform
work that only occasionally requires balancing, stooping, kneeling, crouching,
crawling, and climbing (except never requires the use of ladders, ropes, and
scaffolds). He can perform jobs that allow frequent exposure to extreme cold,
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extreme heat, and irritants such as fumes, odors, dust, gases, and poorly ventilated
areas. He needs to avoid hazards. He can perform jobs consisting of simple (1- to
3-step tasks), routine, and repetitive tasks, in a work environment without
production rate pace, and with only occasional interaction with co-workers and
the public. Time off task during the workday can be accommodated by normal
breaks; i.e., he is able to sustain concentration and attention for at least two hours
at a time.
R. at 4231-32.
On June 23, 2017, Plaintiff filed exceptions to the decision with the Appeals Council (R.
at 4219-20), which declined to assume jurisdiction on April 3, 2018 (R. at 4209-13). The ALJ’s
decision thus became the final decision of the Commissioner after remand. See 20 C.F.R.
§ 404.984(b)(2). On April 25, 2018, Plaintiff filed a complaint in this Court seeking review of
the Commissioner’s decision. Under Standing Order 2014-01, this matter has been referred to
the undersigned for pretrial management and for proposed findings of fact and recommendations
under 28 U.S.C. § 636(b)(1)(B) and L.R. 301(5)(b)(ix). The parties have briefed the issues, and
the matter is now fully submitted.
II
Disability Determinations and Burden of Proof
The Social Security Act defines a disability as the inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment that can
be expected to result in death or that has lasted or can be expected to last for a continuous period
of not less than twelve months.
42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R.
§§ 404.1505, 416.905. A claimant has a disability when the claimant is “not only unable to do
his previous work but cannot, considering his age, education, and work experience, engage in
any other kind of substantial gainful work which exists . . . in significant numbers either in the
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region where such individual lives or in several regions of the country.”
42 U.S.C.
§§ 423(d)(2)(A), 1382c(a)(3)(B).
To determine whether a claimant has a disability within the meaning of the Social
Security Act, the Commissioner follows a five-step sequential evaluation process outlined in the
regulations. 20 C.F.R. §§ 404.1520, 416.920; see Barnhart v. Thomas, 540 U.S. 20, 24-25, 124
S. Ct. 376, 379-80 (2003). “If at any step a finding of disability or nondisability can be made,
the [Commissioner] will not review the claim further.” Thomas, 540 U.S. at 24, 124 S. Ct. at
379; see 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The claimant has the burden of production
and proof at steps one through four. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S. Ct.
2287, 2294 n.5 (1987); Radford v. Colvin, 734 F.3d 288, 291 (4th Cir. 2013).
First, the Commissioner will consider a claimant’s work activity. If the claimant is
engaged in substantial gainful activity, then the claimant is not disabled.
20 C.F.R.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i).
Second, if the claimant is not engaged in substantial gainful activity, the Commissioner
looks to see whether the claimant has a “severe” impairment, i.e., an impairment or combination
of impairments that significantly limits the claimant’s physical or mental ability to do basic work
activities. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995); see 20 C.F.R. §§ 404.1520(c),
404.1521(a), 416.920(c), 416.921(a).3
The ability to do basic work activities is defined as “the abilities and aptitudes necessary to do
most jobs.” 20 C.F.R. §§ 404.1521(b), 416.921(b). These abilities and aptitudes include
(1) physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching,
carrying, or handling; (2) capacities for seeing, hearing, and speaking; (3) understanding,
carrying out, and remembering simple instructions; (4) use of judgment; (5) responding
appropriately to supervision, co-workers, and usual work situations; and (6) dealing with changes
in a routine work setting. Id. §§ 404.1521(b)(1)-(6), 416.921(b)(1)-(6); see Yuckert, 482 U.S. at
141, 107 S. Ct. at 2291.
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Third, if the claimant has a severe impairment, then the Commissioner will consider the
medical severity of the impairment. If the impairment meets or equals one of the presumptively
disabling impairments listed in the regulations, then the claimant is considered disabled,
regardless of age, education, and work experience.
20 C.F.R. §§ 404.1520(a)(4)(iii),
404.1520(d), 416.920(a)(4)(iii), 416.920(d); see Radford, 734 F.3d at 293.
Fourth, if the claimant’s impairment is severe, but it does not meet or equal one of the
presumptively disabling impairments, then the Commissioner will assess the claimant’s RFC to
determine the claimant’s “ability to meet the physical, mental, sensory, and other requirements”
of the claimant’s past relevant work.
20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1545(a)(4),
416.920(a)(4)(iv), 416.945(a)(4). RFC is a measurement of the most a claimant can do despite
his or her limitations. Hines v. Barnhart, 453 F.3d 559, 562 (4th Cir. 2006); see 20 C.F.R.
§§ 404.1545(a)(1), 416.945(a)(1).
The claimant is responsible for providing evidence the
Commissioner will use to make a finding as to the claimant’s RFC, but the Commissioner is
responsible for developing the claimant’s “complete medical history, including arranging for a
consultative examination(s) if necessary, and making every reasonable effort to help [the
claimant] get medical reports from [the claimant’s] own medical sources.”
20 C.F.R.
§§ 404.1545(a)(3), 416.945(a)(3). The Commissioner also will consider certain non-medical
evidence and other evidence listed in the regulations. See id. If a claimant retains the RFC to
perform past relevant work, then the claimant is not disabled.
Id. §§ 404.1520(a)(4)(iv),
416.920(a)(4)(iv).
Fifth, if the claimant’s RFC as determined in step four will not allow the claimant to
perform past relevant work, then the burden shifts to the Commissioner to prove that there is
other work that the claimant can do, given the claimant’s RFC as determined at step four, age,
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education, and work experience. See Hancock v. Astrue, 667 F.3d 470, 472-73 (4th Cir. 2012).
The Commissioner must prove not only that the claimant’s RFC will allow the claimant to make
an adjustment to other work, but also that the other work exists in significant numbers in the
national economy.
See Walls, 296 F.3d at 290; 20 C.F.R. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v). If the claimant can make an adjustment to other work that exists in significant
numbers in the national economy, then the Commissioner will find that the claimant is not
disabled. If the claimant cannot make an adjustment to other work, then the Commissioner will
find that the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
III
Substantial Evidence Standard
The Court reviews an ALJ’s decision to determine whether the ALJ applied the correct
legal standards and whether the factual findings are supported by substantial evidence. See
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). In other words, the issue before the Court “is
not whether [Plaintiff] is disabled, but whether the ALJ’s finding that [Plaintiff] is not disabled is
supported by substantial evidence and was reached based upon a correct application of the
relevant law.” Id. The Court’s review is deferential, as “[t]he findings of the Commissioner of
Social Security as to any fact, if supported by substantial evidence, shall be conclusive.” 42
U.S.C. § 405(g). Under this standard, substantial evidence is less than a preponderance but is
enough that a reasonable mind would find it adequate to support the Commissioner’s conclusion.
See Hancock, 667 F.3d at 472; see also Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct.
1420, 1427 (1971).
In evaluating the evidence in an appeal of a denial of benefits, the court does “not
conduct a de novo review of the evidence,” Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir.
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1986), or undertake to reweigh conflicting evidence, make credibility determinations, or
substitute its judgment for that of the Commissioner. Hancock, 667 F.3d at 472. Rather, “[t]he
duty to resolve conflicts in the evidence rests with the ALJ, not with a reviewing court.” Smith v.
Chater, 99 F.3d 635, 638 (4th Cir. 1996). When conflicting evidence allows reasonable minds to
differ as to whether a claimant is disabled, the responsibility for that decision falls on the ALJ.
Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam).
IV
Discussion
Among Plaintiff’s arguments is his contention that the ALJ failed to explain the ALJ’s
conclusions how he could sustain work for a full workday and the ALJ’s conclusions about his
physical limitations that affected his ability to work. Pl.’s Mem. Supp. Mot. Summ. J. 23-24,
ECF No. 12-1. As discussed below, it is recommended that the Court deny Defendant’s Motion
for Summary Judgment (ECF No. 16), grant Plaintiff’s Motion for Summary Judgment (ECF No.
12), reverse the Commissioner’s final decision, and remand for an award of benefits.
Social Security Ruling4 (“SSR”) 96-8p, 1996 WL 374184 (July 2, 1996), explains how
adjudicators should assess RFC and instructs that the RFC
“assessment must first identify the individual’s functional limitations or
restrictions and assess his or her work-related abilities on a function-by-function
basis, including the functions” listed in the regulations. “Only after that may
[residual functional capacity] be expressed in terms of the exertional levels of
work, sedentary, light, medium, heavy, and very heavy.” The Ruling further
explains that the residual functional capacity “assessment must include a narrative
Social Security Rulings are “final opinions and orders and statements of policy and
interpretations” that the Social Security Administration has adopted. 20 C.F.R. § 402.35(b)(1).
Once published, these rulings are binding on all components of the Social Security
Administration. Heckler v. Edwards, 465 U.S. 870, 873 n.3, 104 S. Ct. 1532, 1534 n.3 (1984);
20 C.F.R. § 402.35(b)(1). “While they do not have the force of law, they are entitled to
deference unless they are clearly erroneous or inconsistent with the law.” Pass, 65 F.3d at 1204
n.3.
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discussion describing how the evidence supports each conclusion, citing specific
medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily
activities, observations).”
Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (alteration in original) (footnote omitted)
(citations omitted). The Fourth Circuit has held, however, that a per se rule requiring remand
when the ALJ does not perform an explicit function-by-function analysis “is inappropriate given
that remand would prove futile in cases where the ALJ does not discuss functions that are
‘irrelevant or uncontested.’” Id. (quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)
(per curiam)). Rather, remand may be appropriate “where an ALJ fails to assess a claimant’s
capacity to perform relevant functions, despite contradictory evidence in the record, or where
other inadequacies in the ALJ’s analysis frustrate meaningful review.” Id. (quoting Cichocki,
729 F.3d at 177). The court in Mascio concluded that remand was appropriate because it was
“left to guess about how the ALJ arrived at his conclusions on [the claimant’s] ability to perform
relevant functions” because the ALJ had “said nothing about [the claimant’s] ability to perform
them for a full workday,” despite conflicting evidence as to the claimant’s RFC that the ALJ did
not address. Id. at 637; see Monroe v. Colvin, 826 F.3d 176, 187-88 (4th Cir. 2016) (remanding
because ALJ erred in not determining claimant’s RFC using function-by-function analysis; ALJ
erroneously expressed claimant’s RFC first and then concluded that limitations caused by
claimant’s impairments were consistent with that RFC).
The Fourth Circuit further held in Mascio that “an ALJ does not account ‘for a claimant’s
limitations in concentration, persistence, and pace by restricting the hypothetical question to
simple, routine tasks or unskilled work.’” Mascio, 780 F.3d at 638 (quoting Winschel v. Comm’r
of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011)). “[T]he ability to perform simple tasks
differs from the ability to stay on task. Only the latter limitation would account for a claimant’s
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limitation in concentration, persistence, or pace.” Id. The court in Mascio remanded the case for
the ALJ to explain why the claimant’s moderate limitation in concentration, persistence, or pace
at step three did not translate into a limitation in the claimant’s RFC. Id. In other words, under
Mascio, “once an ALJ has made a step three finding that a claimant suffers from moderate
difficulties in concentration, persistence, or pace, the ALJ must either include a corresponding
limitation in her RFC assessment, or explain why no such limitation is necessary.” Talmo v.
Comm’r, Soc. Sec., Civil Case No. ELH–14–2214, 2015 WL 2395108, at *3 (D. Md. May 19,
2015), report and recommendation adopted (D. Md. June 5, 2015).
This Court previously remanded Plaintiff’s case because the Court was left to guess how
the previous ALJ accounted for Plaintiff’s ability to stay on task despite finding that he had
moderate difficulties in maintaining concentration, persistence, or pace. R. at 4425. This Court
directed the ALJ on remand to “determine on a function-by-function basis how Plaintiff’s
impairments affect his ability to work for a full workday.” R. at 4425 (citing Monroe, 826 F.3d
at 188). Here, another ALJ again found on remand that Plaintiff had moderate limitations in his
ability to concentrate, persist, or maintain pace (R. at 4231) but then found that his “[t]ime off
task during the workday can be accommodated by normal breaks; i.e., he is able to sustain
concentration and attention for at least two hours at a time” (R. at 4232). The ALJ found that
Plaintiff was “able to drive, prepare meals, manage funds, and handle his own medical care.” R.
at 4231. “When a durational limitation is included, such limitations must consider that the
normal 8-hour workday already includes breaks approximately every two (2) hours and provide
further explanation as to how that restriction ‘adequately accounts for a moderate limitation in
the ability to stay on task’ or else it does not meet the Mascio requirements. Capps v. Berryhill,
Civil Action No. CBD-17-2438, 2018 WL 4616018, at *5 (D. Md. Sept. 26, 2018) (quoting
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Steele v. Comm’r, Soc. Sec., No. MJG-15-1725, 2016 WL 1427014, at *4 (D. Md. Apr. 11,
2016)). Moreover, the ALJ limited Plaintiff’s RFC to “a work environment without production
rate pace” (R. at 4232), such as on an assembly line (R. at 4235). Absent a definition by the
Commissioner of “production rate pace,” it is “difficult, if not impossible,” for the Court to
assess whether substantial evidence supports the inclusion of no production-rate pace in the
ALJ’s assessment of Plaintiff’s RFC. Thomas v. Berryhill, 916 F.3d 307, 312 (4th Cir. 2019);
see also Perry v. Berryhill, __ F. App’x __, No. 18-1076, 2019 WL 1092627, at *3 (4th Cir.
Mar. 8, 2019); Butler v. Berryhill, No. 1:18CV59, 2019 WL 442377, at *11 (N.D. Ind. Feb. 4,
2019) (rejecting Commissioner’s argument that ALJ’s limiting claimant to work that did not
require “production-rate pace (e.g. assembly line work)” adequately described how often
claimant would be off task during workday). Finally, the ALJ’s limiting Plaintiff’s RFC to
occasional interaction with co-workers and the public (R. at 4232) does not account for his
moderate limitations in his ability to concentrate, persist, or maintain pace. See Varga v. Colvin,
794 F.3d 809, 815 (7th Cir. 2015) (“‘Few if any work place changes’ with limited ‘interaction
with coworkers or supervisors’ deals largely with workplace adaptation, rather than
concentration, pace, or persistence.”); Stewart v. Astrue, 561 F.3d 679, 684-85 (7th Cir. 2009)
(per curiam) (rejecting contention that “the ALJ accounted for [the claimant’s] limitations of
concentration, persistence, and pace by restricting the inquiry to simple, routine tasks that do not
require constant interactions with coworkers or the general public”); Bey v. Berryhill, Civil
Action No. CBD-17-2292, 2018 WL 3416944, at *3-4 (D. Md. July 12, 2018). In short, the ALJ
failed to account under Mascio for Plaintiff’s ability to stay on task despite finding that he had
moderate limitations in his ability to concentrate, persist, or maintain pace.
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The ALJ also failed to explain how, despite Plaintiff’s moderate limitations in
concentrating, persisting, or maintaining pace (R. at 4231), he could remain on task for more
than 80% of an eight-hour workday. According to the VE, an individual would be unable to
maintain the demands of unskilled work with a 20% loss of productivity. R. at 4309-10. The
ALJ “must both identify evidence that supports his conclusion and ‘build an accurate and logical
bridge from [that] evidence to his conclusion,’” however. Woods v. Berryhill, 888 F.3d 686, 694
(4th Cir. 2018) (alteration in original) (quoting Monroe, 826 F.3d at 189). In particular, the ALJ
“must build a logical bridge between the limitations he finds and the VE evidence relied upon to
carry the Commissioner’s burden at step five in finding that there are a significant number of
jobs available to a claimant.” Brent v. Astrue, 879 F. Supp. 2d 941, 953 (N.D. Ill. 2012). An
ALJ’s failure to do so constitutes reversible error. See Lewis v. Berryhill, 858 F.3d 858, 868 (4th
Cir. 2017). In short, the inadequacy of the ALJ’s analysis frustrates meaningful review. See
Lanigan v. Berryhill, 865 F.3d 558, 563 (7th Cir. 2017) (remanding because, inter alia, ALJ did
not build accurate and logical bridge between claimant’s moderate difficulties in various
functional areas and ALJ’s finding that claimant would not be off task more than 10% of
workday); McLaughlin v. Colvin, 200 F. Supp. 3d 591, 602 (D. Md. 2016) (remanding because
ALJ’s decision failed to explain how, despite claimant’s moderate difficulties in maintaining
concentration, persistence, or pace, she could remain productive for at least 85% of workday, in
light of VE’s testimony that individual “off task” more than 15% of workday because of need to
take unscheduled breaks could not perform any work); Ashcraft v. Colvin, No. 3:13-cv-00417RLV-DCK, 2015 WL 9304561, at *11 (W.D.N.C. Dec. 21, 2015) (remanding under fourth
sentence of 42 U.S.C. § 405(g) because court was unable to review meaningfully ALJ’s decision
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that failed to explain exclusion from RFC assessment an additional limitation of being 20% off
task that VE testified would preclude employment).
The ALJ also concluded that Plaintiff could perform “light work” but never explained
how he concluded from the evidence in the record that Plaintiff could actually perform the tasks
required by “light work,” such as lifting up to 20 pounds at a time, frequently lifting or carrying
up to 10 pounds, or performing “a good deal of walking or standing.” SSR 83-10, 1983 WL
31251, at *5; see Woods, 888 F.3d at 694. In this regard, the ALJ again failed to build an
accurate and logical bridge from the evidence to his conclusion about Plaintiff’s RFC. See
Woods, 888 F.3d at 694. Thus, the ALJ’s “analysis is incomplete and precludes meaningful
review.” Monroe, 826 F.3d at 191.
Generally, “[i]f the reviewing court has no way of evaluating the basis for the ALJ’s
decision, then ‘the proper course, except in rare circumstances, is to remand to the agency for
additional investigation or explanation.’” Radford, 734 F.3d at 295 (quoting Fla. Power & Light
Co. v. Lorion, 470 U.S. 729, 744 (1985)). It is appropriate, however, to reverse for an award of
benefits when “the record does not contain substantial evidence to support a decision denying
coverage under the correct legal standard and when reopening the record for more evidence
would serve no purpose.” Breeden v. Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974). Here,
“[b]ecause the court is left to guess as to how the ALJ concluded that Plaintiff could perform the
relevant functions in light of [his] mental limitations, the court [should find] that substantial
evidence does not support [the ALJ’s] decision.” Scruggs v. Colvin, No. 3:14-CV-00466-MOC,
2015 WL 2250890, at *5 (W.D.N.C. May 13, 2015). Further, this case, which this Court already
had remanded twice for further consideration, has been pending for almost nine years. In
Breeden, for example, the court found that reversing for an award of benefits was appropriate
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when a case had been pending in the agency and courts for almost five years and had been
remanded once before for additional evidence. Breeden, 493 F.2d at 1011. The Court in its
discretion should find that remanding for an ALJ to consider Plaintiff’s claims yet again would
serve no purpose. See Caraballo v. Berryhill, No. 4:15-CV-156-BO, 2017 WL 1012985, at *4
(E.D.N.C. Mar. 14, 2017). Because the undersigned recommends that the Court find reversible
error for the reasons stated above, the undersigned does not address Plaintiff’s remaining
arguments. See Mosley v. Comm’r of Soc. Sec., No. 3:14-CV-278, 2015 WL 6857852, at *3
(S.D. Ohio Sept. 14, 2015); Guthrie v. Astrue, No. 2:09-CV-00594, 2010 WL 3418263, at *7
(S.D.W. Va. May 27, 2010) (“In light of the undersigned’s recommendation of remand, the court
need not address the remaining arguments raised by the parties.”), report and recommendation
adopted, No. 2:09-CV-00594, 2010 WL 3418259 (S.D.W. Va. Aug. 27, 2010).
In sum, for the reasons stated above, it is RECOMMENDED that Defendant’s Motion
for Summary Judgment be DENIED, Plaintiff’s Motion for Summary Judgment be GRANTED,
the Commissioner’s final decision be REVERSED, and this matter be REMANDED for an
award of benefits.
V
Recommendation
For the reasons set forth above, it is respectfully recommended as follows:
(1) The Court DENY Defendant’s Motion for Summary Judgment (ECF No. 16);
(2) The Court GRANT Plaintiff’s Motion for Summary Judgment (ECF No. 12);
(3) The Court REVERSE Defendant’s final decision;
(4) The Court REMAND this matter for an award of benefits; and
(5) The Court CLOSE this case.
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NOTICE TO PARTIES
Any objections to this Report and Recommendation must be served and filed within
fourteen days under Fed. R. Civ. P. 72(b) and L.R. 301(5)(b). Failure to file written objections to
the proposed findings, conclusions, and recommendations of the Magistrate Judge contained in
the foregoing report within fourteen days after being served with a copy of the report may result
in the waiver of any right to a de novo review of the determinations contained in the report, and
such failure shall bar you from challenging on appeal the findings and conclusions accepted and
adopted by the District Judge, except upon grounds of plain error.
Date: June 7, 2019
/s/
Thomas M. DiGirolamo
United States Magistrate Judge
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